The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 14, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On October 1, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a left groin injury that occurred on May 15, 2004 when he carried a floor burnisher up a flight of stairs and the burnisher slipped out of his hands. The worker stated, "…I tried to save the machine by grabbing it and I felt a pull in my groin area and I had my butt on the stairs and I was laying backwards with both hands on the machine and it took me awhile to regain my composure, then I struggled with the machine to get it up the stairs. Right away I felt a pull in my groin while I was trying to save the machine." The worker indicated that he did not report the injury to his employer right away as he thought the pain would go away.

The Employer's Accident Report indicated that on September 24, 2004, the worker first reported that he may have injured his left groin area on or about May 15, 2004 while in the process of carrying a burnishing machine up and down a flight of stairs. The worker did not report the incident/injury at the time because he felt it was a minor muscle strain and expected that it would heal quickly. As time passed, the worker's discomfort subsided which substantiated in his mind not to report the incident. The employer noted that the worker "…was a new employee on probation at the time of the alleged injury, he did not know how an injury report would be perceived by [the employer], so he kept the matter to himself."

Between September 10 to 21, 2004, the worker was off work due to a cold. The worker claimed that during this time period and as a direct result of coughing fits, he experienced pain in his groin area. Due to this discomfort, the employer noted that the worker attended a doctor on September 20, 2004 and was diagnosed with a suspected hernia. Given the delays in reporting the alleged injury and the fact that none of the worker's supervisors/co-workers were aware that the worker was injured between May 15 and September 24, 2004, the employer was not in a position to confirm or support a work related accident.

A Doctor's First Report indicated that the worker was treated on September 25, 2004 for a left groin injury that occurred on May 15, 2004. The diagnosis rendered was a left inguinal hernia.

On October 4, 2004, the worker advised a WCB adjudicator that he did not report an injury to his employer until September 2004 nor did he mention it to any co-workers. The only complaint he made was to one supervisor and said that it was crazy to lift the machine up the stairs. The worker confirmed that he had a bad cold in September and that it was hard to cough as his groin area would give him pain. The worker denied any previous hernia injuries.

In a report dated October 27, 2004, a general surgeon indicated that he had seen the worker on October 18, 2004 at which time he reported that he injured his left groin at work in April 2004 after carrying a 200 lb. machine up a set of stairs.

In a decision dated October 4, 2004, the adjudicator denied the claim for compensation as he could not establish that an accident as defined in subsection 1(1) of The Workers Compensation Act (the Act) arose out of and in the course of employment. Denial was due to the worker's delay in seeking medical treatment and because of his delay in reporting an injury to his employer. On February 11, 2005, a worker advisor appealed this decision to Review Office.

Prior to rendering a decision, Review Office contacted the worker's supervisor and the building maintenance supervisor with regards to their having any knowledge of the alleged accident.

On April 6, 2005, Review Office confirmed that the claim was not acceptable as it was unable to establish that an accident arose out of and in the course of the worker's employment. Review Office noted that the supervisor did not witness the worker's accident nor was he ever advised that the worker had hurt himself as a result of moving the machine. The building maintenance supervisor stated that the worker had requested an additional machine as it was difficult to move between floors, however, the worker did not report any accident to him until after his cold in September 2004. The worker advisor later appealed Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 4(1) of the Act provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In keeping with this subsection, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
      
3. an occupational disease

and as a result of which a worker is injured."

According to the history provided to the treating surgeon on October 18, 2004, the worker injured his left groin at work carrying a 200 pound machine (a burnisher) up a set of stairs in April of 2004. On examination, the surgeon detected a reducible left inguinal hernia with small soft testicles and ultimately recommended surgical repair.

The employer disputed that the worker's injury was associated with a work related incident on the following basis: "Given the lengthy delay in reporting the alleged injury and the fact that none of his supervisors/co-workers were aware or even noticed he was injured between May 15 and September 24, 2004, the date Mr. [the worker] filed an Accident Report…". The employer further stated that at no time did the worker ever appear to be injured or request to be exempt from performing his regular duties.

The worker stated that he did not report the incident right away because he felt that the problem would go away. The evidence confirms that the worker continued to perform his regular duties with the exception of carrying the heavy machine up the stairs by himself. Apparently, a co-worker would carry the machine up the stairs for him.

In its April 6, 2005 decision, Review Office concluded as follows: "Given the delays in reporting the injury to the employer and in seeking medical treatment, and being unable to confirm any co-workers were aware of ongoing problems, Review Office is unable to establish that an accident as defined in Section 1(1) of the Act arose out of and in the course of the employment." Inasmuch as there was no accident, the claim was therefore not acceptable.

We are aware as a consequence of adjudicating previous hernia related cases that inguinal hernias can be precipitated by such factors as obesity, chronic obstructive lung diseases, positions that increase abdominal pressure, advancing age, smoking and heavy lifting. Medical literature and opinion further confirms that it is not uncommon for there to be a delay between an incident causing a structural defect and the protrusion of a hernial sac.

In the opinion of the treating physician:

"[The worker's] history is consistent with a work related hernia. His pain and illness is consistent with the lifting triggering. He presented to the office because of the persistent pain. The examination confirmed a hernia that had become clinically noticeable. It could have easily been present from the time of the onset of symptoms."

We accept the worker's evidence that on or about May 15, 2004 he felt a pulling sensation in his body after carrying a burnishing machine up two flights of stairs and that sometime afterwards his back and groin were sore. We find based on the weight of evidence that the worker did, on a balance of probabilities, sustain an accident arising out of and in the course of his employment as alleged which resulted in an inguinal hernia. Although the worker did not formally notify the employer within 30 days of the accident, we nevertheless find, given the nature of the injury i.e., inguinal hernia that the claim is a just one and ought to be allowed. Accordingly, the worker's claim is acceptable and his appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of October, 2005